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Mohammed Yusuf and ors. Vs. Abdul Majid - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1931All53
AppellantMohammed Yusuf and ors.
RespondentAbdul Majid
Excerpt:
- - 5. it has been urged for the applicants that the learned sessions judge had no jurisdiction to set aside the order of discharge and to order further inquiry to be made under section 107. 6. in my opinion this contention is well founded. section 204, sub-section (3) is clearly not applicable to the facts of this case......it appears that there were two parties who were hostile to each other, one party consisted of abdul majid and his associates and the other party consisted of mohammad yusuf and his associates. mohammad yusuf made an application to the magistrate under section 107 for having the opposite party bound over to keep the peace. this was followed by a similar application made by abdul majid that security for keeping the peace should be taken from mohammad yusuf and his party. both the applications were sent to the police for inquiry. the police reported that there was fear of a breach of the peace, but the breach of the peace was to be apprehended from the side of abdul majid and his party, and that there was no apprehension from the side of mohammad yusuf's party. the magistrate proceeded.....
Judgment:
ORDER

King, J.

1. This is an application in revision against an order passed by the learned Sessions Judge of Aligarh, setting aside an order of discharge passed by a Magistrate of the First Class and directing further inquiry to be made under Section 107, Criminal P.C.

2. It appears that there were two parties who were hostile to each other, one party consisted of Abdul Majid and his associates and the other party consisted of Mohammad Yusuf and his associates. Mohammad Yusuf made an application to the Magistrate under Section 107 for having the opposite party bound over to keep the peace. This was followed by a similar application made by Abdul Majid that security for keeping the peace should be taken from Mohammad Yusuf and his party. Both the applications were sent to the police for inquiry. The police reported that there was fear of a breach of the peace, but the breach of the peace was to be apprehended from the side of Abdul Majid and his party, and that there was no apprehension from the side of Mohammad Yusuf's party. The Magistrate proceeded with the application against Abdul Majid and his party and bound over Abdul Majid and two other persons under Section 107. As regards the counter application, he dropped further proceedings on the strength of the police report and did not proceed to take any further evidence as against Mohammad Yusuf and his party.

3. Abdul Majid and the two other persons bound over along with him appealed to the Sessions Judge, and at the same time Abdul Majid applied to him in revision praying that the order discharging Mohammad Yusuf and his party under Section 107 should be set aside, and that further inquiry should be made as against them.

4. The learned Sessions Judge dealt with the appeal and with the revision in one judgment. He upheld the order passed against Abdul Majid and his two associates and dismissed their appeal. In the revision case he remarked that the Magistrate had discharged the accused persons on the strength of the police report. The learned Judge further observes:

In my opinion It seems proper that Abdul Majid's evidence should be heard against these men, and if it is found that these three men are likely to disturb the peace, they should be bound over under Section 107, Criminal P.C. I therefore set aside the order of discharge against Qudrat Ullah, Mohammad Yusuf and Amanat Ullah and send the case back to the Court below for trial on the merits.

5. It has been urged for the applicants that the learned Sessions Judge had no jurisdiction to set aside the order of discharge and to order further inquiry to be made under Section 107.

6. In my opinion this contention is well founded. The only section under which the Judge could be considered to have passed his order is Section 436, Criminal P.C. Under that section the Sessions Judge in exercise of his revisional powers can direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3), Section 204, or into the case of any person accused of an offence who has been discharged.

7. The powers thus conferred upon the Sessions Judge under Section 436 do not apply to the action which he has taken in the present case. The application made by Abdul Majid under Section 107 cannot be held to be a complaint. The word ' complaint' is defined in Section 4, Clause (h) of the Code as follows : 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence. The application made by Abdul Majid under Section 107 cannot amount to a complaint, because it does not allege that any person has committed an offence. It only alleges that there is a fear of a breach of the peace on the part of the opposite party and prays that action may be taken to prevent the apprehended breach of the peace.

8. Moreover the application was not dismissed under Section 203. That section only applies to the dismissal of a complaint, and I have already shown that an application under Section 107 cannot be held to be a

complaint within the meaning of the Code. Section 204, Sub-section (3) is clearly not applicable to the facts of this case. The last sentence of Section 436 also does not apply since the persons who were discharged were not 'accused' of any offence.

9. It is conceded indeed by the learned Assistant Government Advocate that the Sessions Judge had no jurisdiction under Section 436 to set aside the order of discharge] and to direct further inquiry. The only section under which the Sessions Judge might have taken action, if he had considered that Mohammad Yusuf and his party had been wrongly discharged, was under Section 438 by making a report to the High Court. It has been suggested by the learned Assistant Government Advocate that this application may now be treated as a report made to the High Court under Section 438. This course is out of the question. The application is made against the Judge's order and it cannot possibly be treated as a reference made by the Judge himself.

10. Even if the Judge had made a reference under Section 438, I should not have interfered in revision. The question whether it is necessary in the interests of keeping the peace to take security from Mohammad Yusuf and his party is essentially a question which primarily concerns the District Magistrate and the local police. The police reported that in their opinion there was no necessity for taking security from Mohammad Yusuf and his party. The Sub-divisional Magistrate considered that it was unnecessary to take further action against them.. If the District Magistrate had thought it necessary to take further action he could have permitted the institution of fresh proceedings. It is not the sort of case in which the Sessions Judge or the High Court should, in my opinion interfere. I set aside the order which is the subject matter of this application, and restore the order of discharge passed by the Subdivisional Magistrate.


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